PUBLISHED
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`UNITED STATES COURT OF APPEALS
`FOR THE FOURTH CIRCUIT
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`No. 19-2316
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`SNYDER’S-LANCE, INC.; PRINCETON VANGUARD, LLC,
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`FRITO-LAY NORTH AMERICA, INC.,
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`Plaintiffs - Appellants,
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`v.
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`Defendant - Appellee.
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`Appeal from the United States District Court for the Western District of North Carolina, at
`Charlotte. Kenneth D. Bell, District Judge. (3:17−cv−00652−KDB−DSC)
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`Argued: January 28, 2021
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`Before NIEMEYER, WYNN, and FLOYD, Circuit Judges.
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`Decided: March 17, 2021
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`Reversed and remanded by published opinion. Judge Wynn wrote the opinion, in which
`Judge Niemeyer and Judge Floyd joined.
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`ARGUED: Paul D. Clement, KIRKLAND & ELLIS LLP, Washington, D.C., for
`Appellants. William G. Barber, PIRKEY BARBER PLLC, Austin, Texas, for Appellee.
`ON BRIEF: David H. Bernstein, James J. Pastore, DEBEVOISE & PLIMPTON LLP,
`New York, New York; George W. Hicks, Jr., Julie M.K. Siegal, KIRKLAND & ELLIS
`LLP, Washington, D.C., for Appellants. David E. Armendariz, PIRKEY BARBER PLLC,
`Austin, Texas, for Appellee.
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`

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`WYNN, Circuit Judge:
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`This case presents a narrow question of statutory interpretation: whether a party to
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`a trademark dispute who appeals a decision of the Patent and Trademark Office’s
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`Trademark Trial and Appeal Board (“Trademark Board”) to the Federal Circuit may, after
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`vacatur and remand by the Federal Circuit and the issuance of a new decision by the
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`Trademark Board, seek review of that second decision in federal district court.
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`The district court answered this question in the negative and dismissed the case for
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`lack of jurisdiction. But we reach a different conclusion. In this matter of first impression
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`for our Circuit, we join our sister circuits that have considered this question and hold that
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`a district court may review a subsequent decision of the Trademark Board in such
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`circumstances.
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`Accordingly, we reverse the district court’s judgment dismissing the case for lack
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`of subject matter jurisdiction and remand for further proceedings.
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`I.
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`The Lanham Act is the United States’ federal trademark law. Under the Lanham
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`Act, trademarks that are “distinctive”—“those that are arbitrary (‘Camel’ cigarettes),
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`fanciful (‘Kodak’ film), or suggestive (‘Tide’ laundry detergent)”—are entitled to the
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`“valuable benefits” of registration on the principal register. U.S. Pat. & Trademark Off. v.
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`Booking.com B. V., 140 S. Ct. 2298, 2302 (2020) (most internal quotation marks omitted).
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`These benefits include “a presumption that the mark is valid.” Id.
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`By contrast, trademarks that are merely “descriptive”—such as “‘Park ’N Fly’
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`airport parking”—generally may only be registered on the supplemental register, which
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`2
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`“accords more modest benefits.” Id. (citing Park ’N Fly, Inc. v. Dollar Park & Fly, Inc.,
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`718 F.2d 327, 331 (9th Cir. 1983), rev’d on other grounds, 469 U.S. 189 (1985)). There is
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`an exception for descriptive terms which have “acquired distinctiveness” by “achiev[ing]
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`significance in the minds of the public as identifying the applicant’s goods or services,” id.
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`at 2303 (internal quotation marks omitted), such as “American Airlines,” OBX-Stock, Inc.
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`v. Bicast, Inc., 558 F.3d 334, 340 (4th Cir. 2009) (capitalization modified). Such
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`trademarks are eligible for registration on the principal register. Booking.com, 140 S. Ct.
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`at 2303. Finally, generic terms are not eligible for registration on either register because
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`“[t]he name of the good itself (e.g., ‘wine’) is incapable of distinguishing one producer’s
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`goods from the goods of others.” Id. (alterations and most internal quotation marks
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`omitted).
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`In 2004, Plaintiff Princeton Vanguard, LLC1 sought to register the mark “PRETZEL
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`CRISPS” in reference to one of its products, flat pretzel crackers. The trademark examiner
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`denied registration on the principal register as a distinctive mark but allowed registration
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`on the supplemental register as a descriptive mark.
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`In 2009, Plaintiffs reapplied for registration on the principal register, believing that
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`the mark had by that time acquired distinctiveness. However, Defendant Frito-Lay North
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`America, Inc. opposed registration, arguing that “PRETZEL CRISPS” was “generic for
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`pretzel crackers and thus . . . not registrable,” or alternatively, that it was “highly descriptive
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`of a type of cracker product and has not acquired distinctiveness.” Princeton Vanguard,
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`1 Co-Plaintiff Snyder’s-Lance, Inc., acquired Princeton Vanguard, LLC in 2012.
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`3
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`LLC v. Frito-Lay N. Am., Inc., 786 F.3d 960, 963 (Fed. Cir. 2015). The dispute went before
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`the Trademark Board, where the parties developed an extensive factual record before fact
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`discovery closed in 2012. The Trademark Board sided with Defendant in 2014, concluding
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`that “PRETZEL CRISPS” was generic. Frito-Lay N. Am., Inc. v. Princeton Vanguard,
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`LLC, 109 U.S.P.Q.2d 1949, 1960 (T.T.A.B. 2014). It did not reach the acquired-
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`distinctiveness question. Id. at 1960 n.13.
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`Plaintiffs then faced a choice. Under the Lanham Act, they could seek review of the
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`Trademark Board’s 2014 decision in either the Federal Circuit (pursuant to 15 U.S.C.
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`§ 1071(a)) or a district court (pursuant to § 1071(b)). The two paths have distinctive
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`features. The Federal Circuit path generally provides for faster resolution of the appeal and
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`restricts the record to that developed before the Trademark Board. See 15 U.S.C.
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`§ 1071(a)(4). Additionally, the Federal Circuit “review[s] the [Trademark] Board’s factual
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`findings for substantial evidence.” In re St. Helena Hosp., 774 F.3d 747, 750 (Fed. Cir.
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`2014). By contrast, the district court path allows for additional development of the record
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`and de novo review—but it opens the appellant up to counterclaims by the other party. See
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`B & B Hardware, Inc. v. Hargis Indus., Inc., 575 U.S. 138, 144 (2015); 3 J. Thomas
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`McCarthy, Trademarks and Unfair Competition § 21:20 (5th ed. 2020 & Supp. 2021).
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`If the appellant elects Federal Circuit review under § 1071(a), the appellee can
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`choose instead to have the case proceed in district court pursuant to § 1071(b). See 15
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`U.S.C. § 1071(a)(1). But the reverse is not true. In other words, either party can force
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`selection of § 1071(b) (district court) review, but neither can force selection of § 1071(a)
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`4
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`(Federal Circuit) review. Federal Circuit review occurs only when the appellant selects it
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`and the appellee acquiesces in that selection.
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`Plaintiffs opted for the § 1071(a) route and appealed the Trademark Board’s 2014
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`decision to the Federal Circuit. They assert that they made this choice because they wished
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`to raise only a legal issue and believed the Federal Circuit would be the more efficient
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`route. Defendant did not elect to force § 1071(b) review in district court instead.
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`Accordingly, the case proceeded before the Federal Circuit, which agreed with
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`Plaintiffs in 2015. The Federal Circuit concluded that the Trademark Board had “applied
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`the incorrect legal standard in evaluating whether the mark [wa]s generic.” Princeton
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`Vanguard, 786 F.3d at 962. Specifically, the court concluded the Trademark Board had
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`erroneously evaluated the terms “PRETZEL” and “CRISPS” separately, rather than the
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`complete phrase “PRETZEL CRISPS.” Id. at 969. Moreover, the court noted that the
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`Trademark Board could not “disregard the results of survey evidence without explanation,”
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`as its decision appeared to do. Id. at 970. Accordingly, the Federal Circuit “vacate[d] and
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`remand[ed to the Trademark Board] for further proceedings.” Id. at 962.
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`On remand, in a 2017 decision, the Trademark Board again concluded that
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`“PRETZEL CRISPS” was generic. Frito-Lay N. Am., Inc. v. Princeton Vanguard, LLC,
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`124 U.S.P.Q.2d 1184, 1204 (T.T.A.B. 2017). However, the Trademark Board also
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`concluded, in the alternative, that “PRETZEL CRISPS” lacked acquired distinctiveness.
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`Id. at 1206.
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`This time, Plaintiffs sought review of the Trademark Board’s 2017 decision in
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`federal district court pursuant to § 1071(b). They assert that they opted for district court
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`5
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`review of the Trademark Board’s second decision because they wished to expand the
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`record to include additional evidence of acquired distinctiveness that had arisen in the
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`intervening years—something they could only do in district court.
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`The case proceeded for two years in district court. The parties cross-moved for
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`summary judgment and introduced new evidence. But before the district court could rule
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`on the motions, the case was reassigned to a different judge. The court then raised for the
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`first time the question of whether it had jurisdiction to review the Trademark Board’s 2017
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`decision in light of Plaintiffs’ earlier election of Federal Circuit review of the Trademark
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`Board’s 2014 decision. The parties briefed the issue, with Plaintiffs arguing for jurisdiction
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`and Defendant arguing against.
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`After considering the parties’ arguments, the court dismissed the case without
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`prejudice for lack of subject matter jurisdiction. The court concluded that Plaintiffs’ initial
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`election of the § 1071(a) path meant that they could only appeal subsequent decisions by
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`the Trademark Board to the Federal Circuit. Princeton Vanguard, LLC v. Frito-Lay N. Am.,
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`Inc., 414 F. Supp. 3d 822, 824 (W.D.N.C. 2019). This appeal followed.
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`II.
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`This Court “reviews a dismissal for lack of subject matter jurisdiction and questions
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`of statutory interpretation de novo.” United States ex rel. Carson v. Manor Care, Inc., 851
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`F.3d 293, 302 (4th Cir. 2017).
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`III.
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`Under 28 U.S.C. § 1295, “the Federal Circuit shall have exclusive jurisdiction” of
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`appeals from decisions of the Trademark Board. 28 U.S.C. § 1295(a)(4)(B). Accordingly,
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`6
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`the question of whether § 1071(b) applies—thus modifying § 1295’s otherwise bright-line
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`rule and permitting review by the district court—implicates our jurisdiction and that of the
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`court below.
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`In cases involving statutory interpretation, “we begin our analysis with the text of
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`the governing statute[]. Only when statutory text is ambiguous do we consider ‘other
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`indicia of congressional intent such as the legislative history.’” Copley v. United States,
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`959 F.3d 118, 123 (4th Cir. 2020) (citation omitted) (quoting Lee v. Norfolk S. Ry. Co., 802
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`F.3d 626, 631 (4th Cir. 2015)).
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`We conclude that the statutory text of the Lanham Act, while ambiguous, favors
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`Plaintiffs’ argument in favor of jurisdiction. This conclusion is further bolstered by
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`legislative history, our sister circuits’ holdings in similar cases, and policy considerations.
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`Accordingly, we hold that the district court erred in dismissing the case for lack of
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`jurisdiction.
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`A.
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`The statutory text of the Lanham Act provides in relevant part that:
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`[(a)] An applicant for registration of a mark . . . who is dissatisfied with the decision
`of the . . . [Trademark] Board, may appeal to the . . . Federal Circuit thereby waiving
`his right to proceed under subsection (b) of this section: Provided, That such appeal
`shall be dismissed if any adverse party to the proceeding . . . , within twenty days
`after the appellant has filed notice of appeal . . . , files notice with the Director that
`he elects to have all further proceedings conducted as provided in subsection (b) of
`this section. Thereupon the appellant shall have thirty days thereafter within which
`to file a civil action under subsection (b) of this section, in default of which the
`decision appealed from shall govern the further proceedings in the case.
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`. . . .
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`7
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`[(b)] Whenever a person authorized by subsection (a) of this section to appeal to the
`. . . Federal Circuit . . . is dissatisfied with the decision of the . . . [Trademark] Board,
`said person may, unless appeal has been taken to . . . the Federal Circuit, have
`remedy by a civil action if commenced within such time after such decision, not less
`than sixty days, as the Director appoints or as provided in subsection (a) of this
`section.
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`15 U.S.C. § 1071(a)(1), (b)(1).
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`The parties agree that, by the plain language of the statute, an applicant dissatisfied
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`with the initial decision of the Trademark Board may seek review of that decision via either
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`avenue, subject to the opposing party’s right to elect district court review. In other words,
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`there is no dispute that, in 2014, Plaintiffs properly exercised their right to appeal to the
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`Federal Circuit under § 1071(a).
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`Additionally, the parties agree that issues decided by the Federal Circuit in its
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`review cannot subsequently be relitigated. Plaintiffs acknowledged in briefing before the
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`district court that the Federal Circuit’s holding on certain points of law was binding as the
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`law of the case. And beyond general law-of-the-case principles, this rule may be mandated
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`by the statute itself, which provides that the Federal Circuit’s “opinion . . . shall govern the
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`further proceedings in the case.”2 Id. § 1071(a)(4); see Gillette Co. v. “42” Prods. Ltd.,
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`435 F.2d 1114, 1117 (9th Cir. 1970) (interpreting § 1071(a)(4) in this way). Put another
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`2 Plaintiffs suggest that this provision may apply solely to bind the Trademark
`Board, not other federal courts. See Opening Br. at 37; Oral Arg. at 18:29–57; cf. Hoover
`Co. v. Coe, 325 U.S. 79, 83 (1945) (appearing to endorse this interpretation in the patent
`context). We need not decide this question for purposes of this appeal.
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`8
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`way, a party may not take a second bite at the apple by seeking re-review in district court
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`of issues already decided by the Federal Circuit.3
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`Further, the parties agree that the Trademark Board’s decisions in 2014 and 2017
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`were unique “decisions.” While Defendant argues that the decisions were nearly identical,
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`it agreed at oral argument that they were, indeed, separate decisions.
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`But the parties part ways on the question of whether Plaintiffs had the same choice
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`of review options in 2017 as they did in 2014. Essentially, Defendant claims that Plaintiffs’
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`decision to appeal to the Federal Circuit in 2014 binds them to that choice for the remainder
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`of this case. By contrast, Plaintiffs argue that they may make a new election for each new
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`decision by the Trademark Board. While we find the statutory language somewhat
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`ambiguous, we conclude that Plaintiffs have the better interpretation.
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`Admittedly, some aspects of the plain language appear to favor Defendant’s
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`interpretation of the statute. After all, § 1071(a) instructs that when a party elects to appeal
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`to the Federal Circuit, that party “thereby waiv[es] his right to proceed under subsection
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`(b) of this section.” 15 U.S.C. § 1071(a)(1). Moreover, § 1071(b) provides that a party
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`3 The district court concluded that “Plaintiffs took their one bite at the proverbial
`apple when they opted for a Federal Circuit appeal and are not entitled to take another one
`in this Court.” Princeton Vanguard, 414 F. Supp. 3d at 830. Similarly, Defendant argues
`that “allowing Princeton Vanguard to pursue its appeal in district court would give it
`multiple bites at the same apple.” Response Br. at 26–27. This argument misunderstands
`the nature of this case. Plaintiffs may not—as they acknowledge—seek reconsideration of
`the Federal Circuit’s original decision, which acts as the law of the case. Nor may they now
`seek review of the Trademark Board’s original decision; the Federal Circuit already
`reviewed it. They seek only to choose a different venue for review of the unresolved aspects
`of the new decision. There is no second bite at the apple.
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`9
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`dissatisfied with a Trademark Board decision “may, unless appeal has been taken to . . .
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`the Federal Circuit, have remedy by a civil action.” Id. § 1071(b)(1). At first blush, that
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`language suggests that where a party selects Federal Circuit review, it may not then select
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`district court review.4
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`On closer inspection, however, Defendant’s interpretation leads to difficulties.
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`While the statute speaks of “waiving [one’s] right” to district court proceedings and refers
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`to an “appeal [that] has been taken” to the Federal Circuit, it says nothing about how long
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`a choice of forum remains in effect, or whether it can bind a party across appeals from
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`related, but distinct “decisions.”
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`Common sense, however, suggests that there must be some limitation. After all, in
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`most circumstances, waivers apply only to the proceedings in question. Defendant wisely
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`does not argue that the waiver applies for the rest of time, including in another proceeding
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`altogether or regarding a different trademark. We think it plain that we must avoid an
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`interpretation with such farcical results.
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`Perhaps unsurprisingly, then, both parties suggest that we read some implicit
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`limitation into the literal language of the text. Defendant suggests the waiver is limited to
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`4 One interesting question is what would happen if a party first selected district court
`review, and later sought Federal Circuit review. The statutory language is silent on this
`issue. Defendant suggested at oral argument that such a situation could never arise, as the
`case would not return to the Trademark Board from the district court, and accordingly there
`would never be a subsequent Trademark Board decision to appeal to the Federal Circuit.
`Oral Arg. at 28:00–29:55. There is some statutory language to support that view. See 15
`U.S.C. § 1071(b)(1). But see In Re Booking.com B.V., No. 79122365, 2017 WL 6033941,
`at *1 (T.T.A.B. Nov. 16, 2017) (on remand from district court). In any event, this question
`is not before us in this appeal.
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`10
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`“any subsequent decision in the same proceeding,” Response Br. at 19, whereas Plaintiffs
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`argue the waiver applies “per decision, [but] not per case,” Opening Br. at 17 (internal
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`quotation marks omitted). We think Plaintiffs’ reading is more persuasive.
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`To see why, consider the relevant sentences as a whole. Under Plaintiffs’
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`interpretation, the text of § 1071(a)(1) indicates that a party “dissatisfied with the
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`[Trademark Board’s] decision . . . may appeal [that decision] to the . . . Federal Circuit
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`thereby waiving his right to proceed under subsection (b) [for that decision].” By contrast,
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`according to Defendant, a party “dissatisfied with the [Trademark Board’s] decision . . .
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`may appeal [that decision] to the . . . Federal Circuit thereby waiving his right to proceed
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`under subsection (b) [for that and all future decisions in the same proceeding].” Plaintiffs’
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`interpretation carries the same meaning forward throughout the sentence; Defendant asks
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`us to switch gears halfway through. We think it plain that the former is preferable. See
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`Tibbetts Indus., Inc. v. Knowles Elecs., Inc., 386 F.2d 209, 212 (7th Cir. 1967) (“No
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`violence is done to [a similar patent-law statute] by reading the word ‘decision’ to refer to
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`every independent adjudication made by the Board [of Patent Interferences].” (quoting
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`Tibbetts Indus., Inc. v. Knowles Elecs., Inc., 263 F. Supp. 275, 278 (N.D. Ill. 1966))); cf.
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`IBP, Inc. v. Alvarez, 546 U.S. 21, 34 (2005) (noting that “identical words used in different
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`parts of the same statute are generally presumed to have the same meaning”).
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`This problem is even more apparent in § 1071(b)(1). According to Plaintiffs, a party
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`“dissatisfied with the decision” of the Trademark Board “may, unless appeal [of that
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`decision] has been taken to” the Federal Circuit, pursue a remedy in district court, as long
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`as the action is “commenced within [a certain] time after such decision.” But per Defendant
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`11
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`and the district court, a party “dissatisfied with the decision” of the Trademark Board “may,
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`unless appeal [of that or any earlier decision in the same proceeding] has [ever] been taken
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`to” the Federal Circuit, pursue a remedy in district court, as long as the action is
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`“commenced within [a certain] time after [this particular] decision.” This interpretation
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`asks the reader to switch back and forth between meanings twice in a single sentence.
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`Defendant’s interpretation is complicated even further when one considers the
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`appellee’s option to force district court review. Imagine Bob’s Burgers loses before the
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`Trademark Board and selects Federal Circuit review, and Shirley’s Sandwiches does not
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`object. The Federal Circuit reviews the case and remands. Bob’s Burgers loses a second
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`time before the Trademark Board, and again selects Federal Circuit review. This time,
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`Shirley’s Sandwiches would like to select district court review instead—as is its right—
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`perhaps because it lost before the Federal Circuit the first time and thinks history is likely
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`to repeat itself, or because some circumstance has changed to alter its calculus. Under the
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`statute, Shirley’s Sandwiches selects district court review by filing notice to that effect, at
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`which point “the appellant [Bob’s Burgers] shall have thirty days thereafter within which
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`to file a civil action under subsection (b) of this section, in default of which the decision
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`appealed from shall govern the further proceedings in the case.” 15 U.S.C. § 1071(a)(1).
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`But, under the reading of § 1071(b)(1) favored by Defendant and the district court,
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`Bob’s Burgers cannot “file a civil action under subsection (b)” because “appeal has been
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`taken” to the Federal Circuit. Defendant rejects this interpretation, arguing that the statute
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`“explicitly provides authorization for the original dissatisfied party [Bob’s Burgers] to file
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`a civil action in that situation.” Response Br. at 23. True, § 1071(a)(1) provides that
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`12
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`authorization—but § 1071(b)(1) does not. And § 1071(a)(1) does not provide standalone
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`authorization; rather, it allows the appellant “to file a civil action under subsection (b).” 15
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`U.S.C. § 1071(a)(1) (emphasis added).
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`Accordingly, for Defendant’s reading to work, we have to read even more language
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`into § 1071(b)(1). The tortured result: a party “dissatisfied with the decision” of the
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`Trademark Board “may, unless appeal [of that or any earlier decision in the same
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`proceeding] has [ever] been taken to” the Federal Circuit (except that such prior appeal
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`does not act as a bar if the appellee has exercised its right for district court review under
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`§ 1071(a)(1)), pursue a remedy in district court, as long as the action is “commenced within
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`[a certain] time after [this particular] decision.”
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`Further, Defendant’s argument rests, in part, on interpreting § 1071(b)(1)’s “unless
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`appeal has been taken” language to apply to different decisions across time in the same
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`way that, in its view, § 1071(a)(1)’s waiver language applies across time. See Response Br.
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`at 20, 23, 43; Oral Arg. at 38:54–39:21; see also Princeton Vanguard, 414 F. Supp. 3d at
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`827 (district court taking this view). Yet Defendant simultaneously takes the contradictory
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`stance that its interpretation is the better one because it avoids rendering part of the statute
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`superfluous—an argument that rests on interpreting the relevant waiver language in the
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`two subsections differently.
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`Specifically, in Defendant’s view, if Congress merely aimed to make clear that the
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`options were mutually exclusive for each Trademark Board decision, “then the language
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`in subsection (a) providing that a party that appeals to the Federal Circuit ‘thereby waiv[es]
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`his right to proceed under subsection (b)’ would be mere surplusage.” Response Br. at 18
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`13
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`(alteration in original). Defendant’s argument appears to be that the “waiver” language in
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`subsection (a) is broader than the “appeal has been taken” language in subsection (b), with
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`the latter being sufficient to establish mutual exclusivity of the options for each decision,
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`and the former being required to establish that the choice of Federal Circuit review waives
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`district court review throughout the proceedings. See Oral Arg. at 23:57–27:15.
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`Putting aside the contradiction in Defendant’s interpretations, there is some appeal
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`to this argument. After all, the fact that Congress used different terminology in the two
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`subsections could well be significant.
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`But at least as plausible is the argument that the different language was simply
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`necessitated by the structure of the statute: the choice of (a) waives the choice of (b); (b)
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`may be chosen unless it has been waived by the choice of (a). And, to the extent “that this
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`interpretation does not eliminate all superfluity between” the two sections, “there is a ready
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`explanation for the redundancy that remains”: in a statute providing two different options
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`for review, it makes sense that Congress reinforced the same idea by repeating it in each
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`subsection. Lockhart v. United States, 136 S. Ct. 958, 966 (2016); see also United States v.
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`Atl. Rsch. Corp., 551 U.S. 128, 137 (2007) (“[O]ur hesitancy to construe statutes to render
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`language superfluous does not require us to avoid surplusage at all costs.”); N.H. Lottery
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`Comm’n v. Rosen, 986 F.3d. 38, 60 (1st Cir. 2021) (“[W]hile avoiding surplusage is
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`definitely preferred, avoiding surplusage at all costs is not, particularly where, as is the case
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`here, syntax offers a good reason for why the qualifier was repeated[.]” (internal quotation
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`marks and alterations omitted)); United States v. Enrique-Ascencio, 857 F.3d 668, 675 (5th
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`Cir. 2017) (“[T]he surplusage canon ‘cannot always be dispositive because (as with most
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`14
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`canons) the underlying proposition is not invariably true. Sometimes drafters do repeat
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`themselves . . . .’” (quoting Antonin Scalia & Bryan A. Garner, Reading Law: The
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`Interpretation of Legal Texts 176–77 (1st ed. 2012))).
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`Further, the district court relied too heavily on the statute’s use of the definite article
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`to support its interpretation. The court concluded that, “by using the words ‘the decision’
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`instead of ‘a decision,’ the statute suggests that there is only one, rather than a possible
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`series of decisions, to which the statutory choice between a Federal Circuit and a District
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`Court appeal applies.” Princeton Vanguard, 414 F. Supp. 3d at 827.
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`That plainly cannot be right. If “the decision” necessarily refers only to the
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`Trademark Board’s first decision, there is no right to review of any subsequent decisions.
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`See 15 U.S.C. § 1071(a)(1) (a party “dissatisfied with the decision” of the Trademark Board
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`may appeal to the Federal Circuit (emphasis added)); id. § 1071(b)(1) (a party “dissatisfied
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`with the decision” of the Trademark Board may “have remedy by a civil action” (emphasis
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`added)). Yet the statutory text—not to mention common sense—makes clear that parties
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`may seek review of multiple Trademark Board decisions. See id. § 1071(b)(1) (“Whenever
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`a[n authorized] person . . . is dissatisfied with the decision of the . . . [Trademark] Board,
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`said person may, unless appeal has been taken to . . . the Federal Circuit, have remedy by
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`a civil action . . . .” (emphases added)); Hoover Co. v. Coe, 325 U.S. 79, 84 (1945) (noting
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`that, in the parallel patent provision, the use of the word “[w]henever” “states a case where
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`the examiner’s decision may be only one of a series of rulings in the Patent Office prior to
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`issue of a patent”); see also 15 U.S.C. § 1071(a)(2) (“[W]hen an appeal is taken to the . . .
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`Federal Circuit, the appellant shall file . . . a written notice of appeal . . . within such time
`
`15
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`

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`after the date of the decision from which the appeal is taken as the Director prescribes, but
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`in no case less than 60 days after that date.” (emphasis added)). We cannot ignore these
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`other statutory provisions in seeking to understand the relevant text. See Sijapati v. Boente,
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`848 F.3d 210, 215 (4th Cir. 2017) (“[I]n construing the statute’s plain language, we must
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`consider the context in which the statutory words are used because we do not construe
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`statutory phrases in isolation; we read statutes as a whole.” (internal quotation marks and
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`alterations omitted)).
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`To be clear, we do not understand the district court to have been asserting that there
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`was no review right of subsequent Trademark Board decisions in any forum. We simply
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`note that that would be the result of applying literally the district court’s understanding of
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`Congress’s use of the definite article in this statute.
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`The district court also relied on § 1071(a)(4). As noted, that subsection provides
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`that, where the option of Federal Circuit review is selected, the Federal Circuit must review
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`the case and, “[u]pon its determination[,] the court shall issue its mandate and opinion . . . ,
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`which shall . . . govern the further proceedings in the case.” 15 U.S.C. § 1071(a)(4). The
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`district court found that this provision requires that if Federal Circuit review has once
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`occurred, a district court may not review the case, concluding that this was “[t]he only
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`interpretation of the statute that gives full effect to the mandated primacy of a Federal
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`Circuit opinion under § 1071(a)(4), and avoids the conflict of one Court of Appeals being
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`‘bound’ by the decision of another Court of Appeals in an appeal from one of its District
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`Courts.” Princeton Vanguard, 414 F. Supp. 3d at 827–28. We disagree.
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`16
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`First, the plain language of § 1071(a)(4) may actually cut the other way: there would
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`be no reason to specify that the Federal Circuit’s decision would “govern the further
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`proceedings in the case” if all future appeals would, of necessity, be returning to the Federal
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`Circuit.5
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`Second, the reference to “further proceedings in the case” makes clear that Congress
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`knows how to refer to the whole case when it wants to—reinforcing that “the decision”
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`refers to each individual Trademark Board decision and that the waiver applies only to any
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`given decision, not to the full proceedings. See Tibbetts, 386 F.2d at 212 (“The statute
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`speaks solely in terms of ‘decisions,’ not interferences or proceedings.” (quoting Tibbetts,
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`263 F. Supp. at 278)).
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`And third, the district court’s interpretation—that § 1071(a)(4) means that the
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`Federal Circuit, having once reviewed the case, must hear all future appeals in the
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`proceedings—would eliminate the right of the winner before the Trademark Board to elect
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`proceedings before the district court if the initial review had been before the Federal
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`Circuit. To return to our earlier example, if Shirley’s Sandwiches won against Bob’s
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`Burgers before the Trademark Board and Bob’s Burgers appealed to the Federal Circuit,
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`then Shirley’s Sandwiches’ choice not to force district court review of that first decision
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`would forever bind it to Federal Circuit review of future decisions—even if it continued to
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`win before the Trademark Board. Yet the waiver in § 1071(a)(1)—the same subsection as
`
`
`5 That is, unless this provision is directed only at the Trademark Board. See supra
`note 2.
`
`
`
`17
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`the “further proceedings” language of § 1071(a)(4)—refers only to a waiver made by the
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`aggrieved party.6 See 15 U.S.C. § 1071(a)(1) (party dissatisfied with Trademark Board’s
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`decision may appeal to Federal Circuit, “thereby waiving his right to proceed under
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`subsection (b)” (emphasis added)). And, other than deadlines, § 1071(a)(1) does not
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`contain any limiting language on the appellee’s right to force district court review.
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`We think the better interpretation of § 1071(a)(4), to the extent it is relevant at all,7
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`is that it incorporates a strict version of the “law of the case” rule in the event that the
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`Federal Circuit renders a decision and, later, the case comes before a different circuit
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`court.8 Again, the parties do not dispute that the Federal Circuit’s earlier decision in this
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`case is binding as to the issues it decided. And, of course, it is not unheard of for one
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`appellate court to need to apply another’s prior decision as the law of the case. E.g.,
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`Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 816 (1988) (noting, in a case
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`involving decisions by both the Seventh and Federal Circuits, that the law of the case
`
`
`6 Admittedly, the waiver language in § 1071(b)(1) is not so limited. See § 1071(b)(1)
`(district court review permitted “unless appeal has been taken to” the Federal Circuit). But
`the right of the appellee to force district court review is given in § 1071(a)(1), so the
`appropriate waiver language to consider is that in that same subsection.
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`7 See supra note 2.
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`8 By itself, the